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You Can Get Charged With Murder For Defensive Gun Use -- Even In A 'Stand Your Ground' State

George Leef , CONTRIBUTOR
MAY 21, 2017 @ 09:45 AM

Since American citizens have the right to keep and bear arms (not just law enforcement officials, as gun control advocates maintain), it would seem to follow that they’re entitled to use their weapons when they are threatened.

More than a century ago, the U.S. Supreme Court recognized that in Beard v. United States, where the first Justice Harlan wrote that the defendant, who had been convicted of manslaughter for killing a man in a violent dispute, was not obliged to retreat, not to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

To codify that right and prevent people from being put on trial for reasonable, defensive gun use when a prosecutor thinks they might instead have retreated or fled, 24 states have enacted “stand your ground” statutes. Among them is North Carolina, but a recent case there shows that when prosecutors and judges want to convict a man for using his gun, the “stand your ground” law can be trampled upon.

Gyrell Lee had been celebrating New Year’s Eve with his cousin Jamiel Walker in the latter’s home. Throughout the evening, a known troublemaker, Quinton Epps, came by and argued with Walker. When Epps returned with friends and became increasingly belligerent, Lee decided that he should get his gun from his car just in case matters got worse. Lee had completed his concealed carry class and was familiar with the law on gun use.

Epps returned once more and a shouting match between himself and Walker ensued in the street. Walker lost his temper and punched Epps, at which point Epps drew a pistol and shot Walker in the stomach. Walker fell and Epps then turned his gun on Lee, who had his gun out. Lee fired and killed Epps.

Lee was subsequently arrested and charged with second-degree murder. He was a bystander who had acted in self-defense, but nevertheless local officials wanted to make an example of him.

At trial, Lee’s attorney argued that he had acted in self-defense. But in charging the jury, the judge failed to make any mention of the state’s “stand your ground” law or the defendant’s right to use force in the defense of his cousin (who had died of his wounds). The jury returned a verdict of guilty.
On appeal, the North Carolina Court of Appeals upheld the conviction, holding that the trial judge had not committed “plain error” in charging the jury without bringing up the state’s “stand your ground” statute. In pertinent part, that law reads “A person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if …he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.” The Court of Appeals wasn’t convinced that the judge had made an error because it wasn’t sure that the statute applied in Lee’s case due to its uncertainty that a public street outside his home counted as “a place he had the lawful right to be.”

Good grief – if the General Assembly had meant to except public areas such as streets from the statute’s reach, it certainly would have said so.

The Court of Appeals also questioned whether the law applied since it didn’t see that Lee was truly in “imminent” danger. Apparently the judges thought Lee somehow knew that he could have just run away from the scene in safety.

Lee’s case has been appealed to the Supreme Court of North Carolina and Cato Institute has filed an amicus brief. In it, Camden Webb and Ilya Shapiro contend, “The outcome of this case is important not just because of the injustice done to Mr. Lee, but because allowing the Court of Appeals decision to stand would threaten effective invocation of no-retreat laws throughout the nation, and weaken a Second Amendment right to bear arms that the U.S. Supreme Court has only recently begun to reassert.” They’re right.

Prosecutors and judges often have a bias against those who own and use firearms. They are happy to find excuses for whittling away at the right of self-defense any time it involves a gun. Juries are frequently sympathetic to such defendants, but they need to be properly instructed on the law.

If this decision stands, it will undermine North Carolina’s “stand your ground” law and embolden prosecutors in other states with similar statutes to try their hands at evading their laws and imprisoning innocent people.

In recent months, federal and state officials have cited at least eight Chinese students at the University of Arizona for fraudulently obtaining resident hunting licenses, and also seized from them a number of firearms obtained using those licenses.

A high-ranking federal official told the Star his agency has no evidence of “malicious intent” by the eight students. Nevertheless, the purchases reveal what officials say is a potentially troubling vulnerability in federal and Arizona firearms laws, which exempt international students and other non-immigrant visa holders with hunting licenses from prohibitions on gun ownership.

One of the University of Arizona students cited said he was simply intrigued by American gun culture and wanted to have the experience of shooting his own firearm, a common motivation among the cited students, according to the federal official.

“It’s totally not possible,” Yifei Gong said of his prospects of ever owning a gun in China, where individual gun ownership is heavily restricted. “You probably won’t have a firearm for your life. That’s why most people want a firearm in China. They can’t buy one; that’s why they want one.”

Following advice found online and from fellow international students, Gong went to a Walmart and purchased a resident hunting license in November, according to him and Arizona Game and Fish Department records obtained by the Star. With the license, he said, he went to a gun shop and bought a semi-automatic RAS47, a U.S.-made rifle designed to mimic the Kalashnikov.

While self-defense was an element of his desire to purchase a gun, Yifei said it was first and foremost for “fun,” and he took his rifle to local shooting ranges several times.

But Gong’s time as an Arizona gun owner was to be short-lived.

In the early morning of Dec. 6, a state game and fish officer and Immigration and Customs Enforcement Homeland Security Investigations agents went to Gong’s off-campus Tucson apartment to ask about his license and, ultimately, to seize his firearm, according to a report.

Gong was cited by the state officer for fraudulently obtaining a hunting license, a Class 2 misdemeanor to which he pleaded guilty and paid a fine. He is facing no other state or federal charges, according to court documents and a federal official.

Gong’s experience was not an isolated incident. As of early May, seven other Chinese students at the UA had been similarly cited and had their guns taken, according to court records and Homeland Security Investigations.

The citations and seizures are the most recent development in what Scott Brown, the Phoenix HSI special agent in charge, described as a more than yearlong project of the Alliance to Combat Transnational Threats, a multiagency group of state and federal agencies, including Customs and Border Protection, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Arizona Department of Public Safety.

Despite the ominous sound of the name, Homeland Security Iinvestigations, the lead agency on the matter, does not suspect the eight UA students had any “malicious intent” when they acquired their licenses and guns, Brown said. He did say there are a “very small number” of other cases where there could be such intent, but even with those, Brown clarified, “our concern isn’t necessarily that they themselves pose the direct threat.”

“People like to go out in the desert and shoot guns — U.S. citizens and foreign students alike,” he said of what his agency found to be the most common motivation at play.

Brown said the cases highlight what he described as a loophole in firearms regulation that “could be exploited by those with malicious intent.”

“This is occurring in other states, where there are foreign students, where there are similar state hunting license requirements,” he added.

As it stands under federal law, nonimmigrant visa holders, like international students, are generally prohibited from owning guns. However, exemptions are made for those with a valid hunting license or permit, according to the ATF’s website. Arizona law reflects that exemption.

To buy a resident Arizona hunting license, applicants must have lived in the state for six months and not claim residency in another state or jurisdiction, according to the Game and Fish Department. One of the requirements of an F-1 student visa is maintaining “a residence abroad which you have no intention of giving up,” according to the U.S. Citizenship and Immigration Service’s website. That designation would typically prevent an international student from being able to get a resident hunting license.

“The visa paperwork make it very clear that they are not a resident of the United States,” said Gene Elms, law enforcement branch chief with Arizona Game and Fish. “They don’t qualify for a resident license in Arizona.”

Nevertheless, Gong said he easily purchased a resident tag at the Walmart on South Houghton Road last November, something Elms said he wasn’t surprised to hear. Other students purchased their resident licenses similarly, though two bought them through AZGFD’s online hunting license portal, according to AZGFD reports.

“I went to Walmart and they asked me how long I’ve been here. I’ve been here for at least two years, and they just assumed that I’m a resident of Arizona, and that’s the hunting license they gave me,” Gong said.

A Walmart spokesperson confirmed Gong’s purchase. “We have policies and procedures in place to help ensure we comply with applicable laws when issuing hunting licenses,” a statement from the company read. “A customer must provide valid identification at the time of the purchase to confirm residency.”

Several local gun shops declined to sell Gong a gun, citing their policy of not selling to international students. However, he said he eventually found one where his hunting license and other documents were enough to buy an RAS47.

“I did not know (I was breaking the law) until they seized my firearm. I believe that most of the people who are cited with this charge did not know that,” Gong said. “If there is something wrong with my hunting license, why would they sell it to me?”

Nonresident Arizona hunting licenses, while significantly more expensive than resident tags, can be purchased by nonimmigrant visa holders in Arizona. It’s legal for such license holders to buy and own a firearm until the license expires, at which time “they become a prohibited possessor,” said Mark Hart, a spokesman for the Game and Fish Department.

NO “BIG HAMMER”

In late 2015, the FBI issued a warning after it received reports of Chinese international students “legally” purchasing guns, according to a Dec. 23 Phoenix ABC 15 story.

In one case detailed in the broadcast, a Chinese student was expelled and deported after bringing two AR-15s onto the Arizona State University campus. Brown described that incident as “the most serious” in Arizona involving an armed international student.

Then, on Jan. 16, Juang Yue, a 19-year-old Chinese student at ASU, was shot and killed in a road-rage incident, news of which spread quickly in the Chinese student community.

In the wake of the tragedy, some Chinese students expressed an interest in buying guns for self-defense, and information on how to acquire them circulated online, as did warnings about the potential dangers of gun ownership. Gong said he was aware of the incident but that it played only a small role in his desire to purchase a gun.

It was around the time of the FBI warning and shooting that ASU’s Police Department asked the ATF for assistance with foreign student gun purchases. ATF, in turn, reached out to HSI because of its expertise in immigration-related issues, according to Brown.

In late 2016, state game and fish employees also noticed an uptick in students who did not appear to be residents coming to their Tucson office to buy hunting licenses, Elms said.

It took time, Brown said, to acquire the records necessary to determine who may have purchased licenses and firearms illegally, as well as what their intent was. The hunting license charges started coming in late 2016, according to court records. But those misdemeanor citations came from the state wildlife agency, not HSI, which could have brought more serious federal firearms charges.

“If there’s no malicious intent and we can get the students into compliance, remove the unlawfully obtained firearms ... we don’t need to drop a big hammer,” Brown said about why the state filed the charges.

Beyond Gong’s AK-47 lookalike, HSI agents have seized handguns and other rifles from the UA students.

“Every person that we’ve talked to, that we’ve seized weapons from, has acknowledged that they were not purchased for the purpose of hunting,” Brown said. “One person did say they were for hunting coyotes. The story was so hideously inaccurate he eventually decided that he didn’t want to stick with that story.”

UPDATES, REFORM NEEDED

There are several efforts underway to make it more difficult for foreign students to improperly purchase guns. While declining to go into details, Brown said the Legislature and Congress may eventually consider legislation that would “close the vulnerabilities.”

At the state level, the goal would be to reach “a standardized definition of residency in alignment with the federal definition of residency,” Brown said.

When it comes to nonresident hunting licenses, Homeland Security Investigations feels they should enable nonimmigrant visa holders to purchase only guns “specific to hunting/outdoor game sportsmanship,” according to a statement provided by the agency.

While he’s sympathetic to the concerns raised by HSI and others, Elms pointed out that many foreign nationals come to Arizona to hunt from around the world and legislative changes could negatively impact their ability to do so.

If the department’s commission backs a state legislative change, Elms said the state Game and Fish Department might support it, but at the end of the day, it is federal law “that creates this loophole,” referencing the hunting license exemption for nonimmigrant visa holders purchasing guns.

“Our state statute simply points to that federal legislation,” he added.

In their statement, HSI agrees that the federal exemptions for nonimmigrant visitors “need to be updated.”

“HSI and law enforcement partners have discussed that aliens here for specific hunting and/or professional sporting competition should be the only ones in possession of firearms or granted exemption to purchase firearms,” the statement goes on to say.

In the next few years, Game and Fish is switching to an online-only license application process, which could make inappropriately purchasing a resident license less likely. “When you do apply online, you’re prompted with a lot more questions than you would be at the Walmart,” Elms said.

Elms and Brown agreed that education could go a long way toward addressing the issue. In the wake of the citations, Brown said HSI and other agencies are working with state universities to make sure such students have a better understanding of gun laws and hunting license requirements.

“Life outside of campus can be complicated for all students, domestic and international, and occasionally in upholding all state and federal laws,” a statement from the UA reads, which goes on to say that when situations like this arise, the university’s staff communicates “with relevant legal and law enforcement entities as appropriate.”

“Most of the Chinese students here, the problem with them is just their lack of knowledge of the law system,” Gong said. “They know there’s a way you can purchase firearms, but they don’t actually know a lot about the firearms law.”

A year ago, Democratic members of the U.S. House of Representatives staged a sit-in demanding a vote on federal gun-safety bills following the shootings at the Pulse nightclub in Orlando. The National Rifle Association’s lobbying was largely blamed for no vote happening. But looking deeper, the Second Amendment with the unique American individualism wrapped around it underlies all. It is America’s fundamental gun problem.

As Michael Waldman at the Brennan Center for Justice suggests in Politico Magazine (2014), the NRA’s construing of the Second Amendment as an unconditional “right” to own and carry guns (a “right” beyond actual constitutional law in Supreme Court rulings) is why it thrives and has clout.

Without clout derived from Second Amendment hyperbole, we might not have, for instance, “stand your ground” laws in more than 20 states starting with Florida in 2005, laws that professors Cheng Cheng and Mark Hoekstra report in the Journal of Human Resources (2013) do not deter crime and are associated with more killing.

Fred Decker is a sociologist in Bowie, Md., with a background in health and social policy research. He earned his doctorate from Florida State University.
Pockets of America were waiting for the NRA’s Second Amendment fertilizer.

For many gun advocates, the gun is an important aspect of one’s identity and self-worth, a symbol of power and prowess in their cultural groups. Dan Kahan at Yale University with co-investigators studied gun-safety perceptions and wrote in the Journal of Empirical Legal Studies (2007) how those most likely “to see guns as safest of all” were “the persons who need guns the most in order to occupy social roles and display individual virtues within their cultural communities.”

Or, as the essayist Alec Wilkinson writes more starkly on The New Yorker’s website (2012), although “the [gun] issue is treated as a right and a matter of democracy” underlying all is “that a gun is the most powerful device there is to accessorize the ego.”

A gun owner carrying his semiautomatic long rifle into a family department store, like Target, in a state permitting such if asked why will likely say because it is his “right.” He is unlikely to reveal the self-gratification gained from demonstrating the prowess and power of his identity, gained from using the gun “to accessorize the ego.” The Second Amendment here is convenient clothing to cover deeper unspoken needs, needs that go beyond the understandable pleasures and functions of typical hunting, for instance.

Australia is often mentioned as an example of nationwide gun-safety legislation reducing gun violence. Following the 1996 massacre of 35 people in Port Arthur, Australia, the government swiftly passed substantial gun-safety legislation. And as Professors Simon Chapman, Philip Alpers and Michael Jones wrote in JAMA’s June 2016 issue, “[F]rom 1979-1996 (before gun law reforms), 13 fatal mass shootings occurred in Australia, whereas from 1997 through May 2016 (after gun-law reforms), no fatal mass shootings occurred.”

But Australia also has nothing akin to the Second Amendment.

Anthropologist Abigail Kohn studied gun owners in the U.S. and Australia who were engaged in sport shooting. She describes in the Journal of Firearms and Public Policy (2004) how “it is immediately apparent when speaking to American shooters that they find it impossible to separate their gun ownership, even their interest in sport shooting, from a particular moral discourse around self, home, family, and national identity.”

And thus, “American shooters are hostile to gun control because just as guns represent freedom, independence — the best of American core values — gun control represents trampling on those core values.”

In contrast, the Australians “view guns as inseparable from shooting sports.” And “perhaps most importantly, Australian shooters believe that attending to gun laws, respecting the concept of gun laws, is a crucial part of being a good shooter; this is the essence of civic duty that Australian shooters conflate with being a good Australian.” While the Australian shooters thought some gun-safety policies were “useless and stupid,” they thought that overall gun-safety measures were “a legitimate means by which the government can control the potential violence that guns can do.”

Unlike Australia (itself an individualist-oriented country), America has the Second Amendment. And that amendment has fostered a unique individualism around the gun, an individualism perpetrating more harm than safety.

Maybe someday the Second Amendment will no longer reign as a prop serving other purposes and, thus, substantive federal gun-safety legislation happens. But as Professor Charles Collier wrote in Dissent Magazine: “Unlimited gun violence is, for the foreseeable future, our [America’s] fate and our doom (and, in a sense, our punishment for [Second Amendment] rights-based hubris).”

The Second Amendment, today, is a song of many distorted verses. A song of a uniquely American tragedy.

Fred Decker is a sociologist in Bowie, Md., with a background in health and social policy research. He earned his doctorate from Florida State University.

I love the smell of EEZOX in the morning...smells like...after-work range trip!

Already launched my first projectile down range this morning. I missed the rear rails when putting the slide back onto my wife's SR-22, and the extra-strong Tandemkross aftermarket recoil spring that I installed launched the slide clear across the room. Teachable moment about always pointing a weapon in a safe direction when handling it.....

I love the smell of EEZOX in the evening...smells like...dead slices of trees punched full of holes!

One of my SR-22 magazines would consistently not feed the last round, and most of these targets saw two magazines (19 rounds plus no-feed) between changes. I also had one stubborn round that took *three* tries before it finally fired. This is better quality ammo...not bulk pail stuff...and I didn't have any problems with no-fires or not feeding the last round when I last used it a year ago.

The first three targets were at a distant three yards. This first one was pointing at the center of the target and seeing where it landed, with no position/grip changes:

I think that the wheel-of-death troubleshooting tool explains it all.

On this second sheet, I was trying different grip strengths and left-hand positions. Still trending to the left, but the elevation looks more consistent:

On the third slice of dead tree, I was keeping my grip constant but moving my trigger finger around to pull with different parts of my finger:

On this last one, I sent the target out 9 yards. That is about the distance that I shot at last year during my first outing, and scenario-wise about the distance between one or two rooms in a typical hotel/hospital/school hallway:

My racing buddy who came with us held this target up to his chest after we had cleaned up, and commented that every round would have hit the bad guy's chest.

I think that the SR-22 is too small for my big paws, and i cannot get a comfortable two-handed grip on it. I may fire up the 3D printer and try to make a custom grip with a larger back strap, to see if that helps the feel. Buying a bigger pistol is off the table, both for financial reasons but also the New Yorkistan paperwork hassle.....

More state governors are signing legislation allowing employees who hold a valid a concealed carry weapon (CCW) permit to bring their guns to work, college campuses, and even K–12 schools in some rare instances. These new state laws can clash with company policies about firearms on the property.

At least 22 states have passed legislation that allows employees to bring their firearms to work, usually if they hold a valid CCW permit and their employer allows it inside the building. By contrast, most company policies will grudgingly allow firearms in their employee parking lots but not inside the facility. This collision of citizens/employee rights versus the rights of a company to create its own response, has predictably led to anger and several lawsuits from all sides.

Employees with CCWs say the rigors of the CCW permit process, along with their training and possession of their firearms at work makes a workplace violence incident or mass attack less likely, because a potential perpetrator would know they are armed and can defend themselves. Employers counter this by asking, “How do you prove a negative?” meaning it’s impossible to measure that type of deterrence value.

Companies have significant worries about the many liability issues attached to allowing employees to bring their guns to work: theft of the weapon from the employee’s desk, backpack, or briefcase; accidental discharges; horseplay and displaying the weapon in an unsafe manner around coworkers; domestic violence between dating employees, which may lead to lethal violence from a firearm either has on-site; and the built-in intimidation factor that a manager, supervisor, or coworker might feel when arguing with a subordinate or coworker known to be armed.

And companies have legitimate concerns about whether armed employees have the skills and tactical mind set to actually shoot a mass attacker, as opposed to following the run-hide-fight active shooter protocol and waiting for the arrival of trained law enforcement, who are already mentally prepared and tactically ready to engage. Company attorneys see the firm as liable if armed employees act or fail to act, without waiting for the police, or cause a wrongful death suit by shooting the wrong person or missing the attacker and hitting someone else.

HR and Security professionals agree that for any firm to allow firearms inside their facilities, these minimum standards will have to be in place: preferred program status for retired military personnel or law enforcement officers (they can be part of an initial pilot program of employees who have volunteered to be armed); proof of a valid CCW permit; proof of gun ownership and annual or semiannual firearms proficiency; an annual medical and psychological evaluation by a physician and a mental health clinician; a current police background check; a company registration program, to know who is armed and with what; locked employee firearm storage areas, with limited access; armed security officers at the site as well; and workplace violence awareness training for all employees.

vreihen: I tread very carefully around this subject matter (because it's a primal issue that seems to invoke raw emotions and visceral response - and rightfully so), but of all the the wide ranging topics that are/have been discussed in Uwe's bar, this has to be the most interesting for me (particularly given that I come from a place where gun culture is minor).

Despite the vast differences between our two countries, Americans and Australians are fundamentally the same in their value-sets: we both want to live in a society that is safe and enriching for us, our families and friends. Societal diversity underpins the very fabric of our communities and the success of both our countries has as its bed-rock, immigration and cultural infusions from far-away places.

Yet despite the fact that we both want the same things from our neighbors and our fellow countrymen, the way that we go about achieving these ends is so very different! I'm not suggesting that either of our countries have the correct solution - we just have different approaches - very interesting indeed!!